"Emergency Disclosure of Electronic Communications to Protect
Life and Limb"

Welcome to part six of "Let the Sun Set on PATRIOT," an EFFector
series on the battle to let some of the most troubling provisions
in the USA PATRIOT Act expire, or "sunset." Each week, we profile
one of the 13 provisions set to expire in December of 2005 and
explain in plain language what's wrong with the provision and why
Congress should allow it to sunset.

This week we look at PATRIOT Section 212, which allows your ISP
or phone company to share your private communications with the
government even if it isn't served with a search warrant. This
tramples on your rights by allowing the Department of Justice
to do an end-run around laws that safeguard your privacy.

Section 212 is a special case, because it has been replaced by
subsequent legislation - namely, Section 225 of the Homeland
Security Act (HSA) of 2002. HSA Section 225 expanded on the
powers granted by PATRIOT 212, but unlike that PATRIOT provision,
HSA Section 225 WILL NOT SUNSET. HSA Section 225 is now the
law at issue, and as explained below, it should be repealed.

How PATRIOT Section 212 and Homeland Security Act Section 225
Changed the Law

Before PATRIOT, in order to get communications records or stored
communications - such as email or voice mail - from your ISP or
phone company, the FBI had to get a search warrant or court order
from a judge, or get a subpoena from a grand jury. Congress gave
us this protection in the Electronic Communications Privacy Act
of 1986, because, even though your ISP or phone company stores
messages for you, they're still your private messages. They
shouldn't be shared without your consent unless a court or grand
jury demands them.

After PATRIOT Section 212, your ISP or phone company could hand
over your private records and messages to any law enforcement
agent, as long as that communications provider reasonably
believed that the immediate danger of death or serious physical
injury required it to do so. This could be take place without
your knowledge or consent.

But Section 212 wasn't the end of the story. The Homeland Security
Act expanded the power of PATRIOT Section 212 by 1) lowering the
relevant standard from "reasonable belief" of a life-threatening
emergency to a "good faith belief," 2) allowing communications
providers to use the emergency exception to disclose your data
to any government entity, not just law enforcement, and 3) dropping
the requirement that the threat to life or limb be immediate.
Most significantly, HSA Section 225 does not expire, rendering
the sunset of PATRIOT Section 212 irrelevant.

Why Homeland Security Act Section 225 Should Be Repealed

Communications providers now need only a "good faith" belief that
there is a life-threatening emergency to justify the disclosure of
your personal communications and records. This belief could be
based solely on the representations of a government agent claiming
that there is such an emergency - whether or not that is actually
the case. This kind of abuse has already occurred: one
Department of Justice attorney said he needed information to
investigate a terror threat when he actually was investigating a
bank robbery, while another agent cited a bio-terrorism threat
in what turned out to be a drug sting.

HSA Section 225 is a prime example of how the Department of Justice
has quietly and incrementally persuaded Congress to expand its powers
under PATRIOT. By pushing for additional provisions in often-obscure
bills, it has worked to ensure that these powers are expanded and
made permanent before the public debate over PATRIOT's sunsetting
provisions has even begun. This subtle legislative opportunism
must be exposed and rebuked; HSA Section 225 must be repealed.

Conclusion

HSA Section 225 takes away your rights by allowing the Department
of Justice to do an end-run around laws that protect
the privacy of your personal communications. EFF strongly
supports its repeal, and we urge you to support it, too. We also
support the Security and Freedom Ensured Act (SAFE Act,
S 1709/HR 3352) and encourage you to visit EFF's Action Center
today to let your representatives know you support the bill.

Next Week

We'll look at Section 201, which makes it easier for the FBI
to wiretap your communications based on activities protected
under the First Amendment.

Cory Doctorow to Participate in Barcelona Forum 2004

On May 9th through September 29th, 2004, the Barcelona Forum will
hold a series of events at an international conference aimed at
challenging media consolidation. Taking place in a specially
constructed international village in Barcelona, Spain, this
"Cultural Olympics" is sponsored by the United Nations, the
Spanish government, the Catalan government and the city of
Barcelona.

EFF Outreach Coordinator Cory Doctorow will participate in a
roundtable discussion entitled "The New Information Networks
During Situations of Crisis: From 11-S to 11-M" at 3:00 p.m.
on May 19th.

Deep Links

Deep Links features noteworthy news items from around the Internet.

Wal-Mart Offers $0.88 Download
You may save two nickels over iTunes, but the service is only for
Windows, the files are wrapped in DRM and the selection is but a
pale shadow of what the P2P nets offer.

The Other Silver Lining in Janet's Bustier
Lauren Gelman points out that Hollywood's "broadcast flag" would
have prevented the public from distributing and discussing clips
of the wardrobe malfunction that launched a thousand letters to
the FCC.

Two More Hollywood Insiders Busted for Piracy
(Registration may be required.)
The majority of pre-release movie piracy stems from Hollywood
"leaks," and existing laws can be used to plug them. So why does
the MPAA continue to push for overbroad copyright laws that
would trample on the public's rights?

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